Spam and the Law

Brandon Eley

There’s spam according to the law, and then there’s spam according to you and me. Although the CAN-SPAM Act 2003 does create enforceable law for prosecuting some bulk mailers, the majority of what you and I consider “spam” are actually legal messages. That’s why permission in email marketing is so important. None of us like receiving spam, and the definition of spam changes depending on who you talk to.

Why Permission Is Important

What can happen if you email a person legally and they consider it spam and mark it as such in their email client? You could:

  • be blacklisted by internet service providers (ISPs)
  • have your account closed and/or hosting account terminated
  • suffer legal implications if you violate laws such as CAN-SPAM

What Constitutes Permission

Permission must be explicit and does not transfer. Just because a client indicates that they want to receive order information, this does not imply you can send them promotional material. You must be granted permission. So what constitutes permission?

  • Written permission — The person fills out a card subscribing to your list.
  • Electronic permission — The client completes an online form, such as one provided by email marketing services.
  • Pre-existing relationship — If you’ve sold to the company or had a financial relationship in the past two years, you are legally allowed to email. I’d caution against simply adding clients to a list; instead, send a unique email asking them to subscribe to the new list. It’s a great way to prune your list.

Be sure you’re on the legal and ethical side of email marketing, and always seek permission. For more information and further reading, check out these resources:

Built-in Permission

One of the biggest benefits to using a third-party email marketing solution is that it forces compliance (as much as possible) with the CAN-SPAM Act. It also requires that you verify your list was obtained according to its strict permission guidelines.

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